The Stumbling Blocks of the Supplement Industry?

Erica Stump breaks down the latest hot legal topic: amino spiking.

Erica Stump, Erica Stump

March 30, 2015

4 Min Read
The Stumbling Blocks of the Supplement Industry?

Amino spiking, also known or protein spiking is a hot topic for the legal community in the supplement industry. Amino acids are the individual building blocks that make up a complete protein. There are 22 standard amino acids that are recognized, with 9 being considered essential, since your body cannot make them itself.

Amino spiking is essentially the practice of using amino acids (often glycine, taurine, glutamine, or creatine) in lieu of actual whey or other protein to increase the overall nitrogen content and the protein “content” of the powder. For labeling purposes, the total protein gram amount listed on the product is based on the total nitrogen content. As a result, even though these isolated amino acids are technically not “protein” to many consumers, they are to the FDA and they count toward the total grams of protein for labeling purposes.

Why are companies doing this? Over the last decade or two, the cost of protein has increased tremendously, forcing supplement companies to look to other ways to cut costs in their protein powders. Amino acids such as glycine or taurine are not as expensive as whey protein isolate, whey protein concentrate, milk protein isolate, micellean casein, and hydrolyzed whey protein. 

Tim Ziegenfuss, CEO for the Center for Applied Health Sciences, said that arginine is also used for protein spiking because “arginine has approximately three times more nitrogen than whey protein. Spiking protein with these nutraceuticals is a cheap way to drive up the nitrogen level of a protein powder without adding more high quality protein.”

Is this illegal? Yes and no. Technically, it does not violate the Food Drug and Cosmetic Act and its labeling laws because the product actually contains x grams of protein. It becomes problematic when the product is advertised as containing x grams of “whey” or other protein, when in fact some of those grams of protein come from an amino such as taurine or glycine. It has also led to lawsuits alleging that the products’ labels are misleading. 

Why is this a problem? Although amino acids are the building blocks of protein, individually they do not have the same beneficial effects of whole protein. Moreover, various consumers and scientists in the industry have opined that amino acids alone do not provide the high quality amino blend that is provided by something such as whey protein. Some take the position that a consumer is not getting a complete amino acid source when using these products. They are, in fact, getting excess of some amino acids, which are arguably less effective when it comes to supporting muscle protein synthesis. We know that the very key aminos for muscle growth are leucine and iso-leucine. We know these are very anabolic amino acids. They are also costly. If someone would add extra of these two aminos the blend would be considered “improved” from a muscle growth standpoint. But if you add large amounts of glycine you may be getting some slight immune boost but minimal mTOR effect on skeletal muscle. Glycine is very inexpensive.

In March 2014, the American Herbal Products Association (AHPA) issued a voluntary guidance on labeling of protein in food and dietary supplements. AHPA suggested that manufacturers define protein as “a chain of amino acids connected by peptide bonds” for labeling purposes.  AHPA further recommended that non-protein nitrogen-containing substances should be accounted for and subtracted from the total nitrogen content when protein is measure by nitrogen content.

Is there any legitimate reason to add an amino acid to a protein product? Yes. One of the benefits to using glycine is that it improves the mouthfeel of whey protein powder, which tends to be chalky. Glycine makes the overall texture creamier. Protein bars made from whey protein tend to get hard. That’s where glycine comes in.

One compalint--Durnford, et al v. MusclePharm Corp., Case No.3:15=cv-00413 (N.D. Cal. 2015)---alleges that "40G OF A POTENT BLEND OF HYDROLYZED BEEF PROTEIN AND LACTOFERRIN PROTEIN" is contradicted by lab tests. The plaintiff also alleges that the defendant further misled consumers with its Muscle Plasma Protein Mix, which discloses 40 grams of protein per serving via its Supplement Facts panel.

The complaint also alleges that the total protein count of 40 grams per serving is not just hydrolyzed beef protein and lactoferrin protein, but also includes “the non-amino acid, non-protein compound creatine monohydrate and the free-form amino acids, l-glycine, leucine, iso-leucine, and valine.” Attached to the complaint are the test results from Chromadex, a reputable testing company, which found that there are 19.4 grams of bounded protein, not even close to the 40 claimed on the label and in the advertisements. 

The allegations in this case are not just simple amino spiking that, while some may say is deceptive and misleading, is compliant with FDA labeling and regulations; the allegations here are that there are false and misleading claims in that there are not 40 grams of hydrolyzed beef protein and lactoferrin protein, as stated in the advertisements of the product. 

So what is a supplement company to do? If it is using aminos to elevate its protein content, it should just say so on the label. Be transparent.  

About the Author(s)

Erica Stump

Erica Stump

Erica W. Stump  is an intellectual property (IP) and dietary supplement regulatory compliance attorney. Her practice focuses on the legal challenges that face dietary supplement and food companies, including trademark and trade dress infringement, false advertising, counterfeiting, unfair competition and patent infringement.

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